Supreme Court hints at change of position on laws punishing cross-burning

March 29, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court, partly contradicting its own message of two years ago, gave the federal government a tentative sign yesterday that criminal laws may be used to punish cross-burning.

At a time when the Clinton administration appears to be stepping up cases against cross-burnings, the court refused to hear a case involving two Illinois men who claimed that such prosecutions violate the constitutional right to free speech.

Burning a cross long has been a symbol of racial hatred, and it has been a common practice of the Ku Klux Klan. But in 1992 the Supreme Court ruled 5-4 that cross-burning done to express racial hatred is a form of "symbolic speech" that cannot be outlawed.

Lower federal courts have had some difficulty applying that ruling to cases since then. But in the case the justices chose to bypass yesterday, a lower court held that while cross-burning cannot be charged as a crime by itself it may be prosecuted when it is used to violate other criminal laws.

The Justice Department had told the justices that the court's 1992 ruling "has created substantial uncertainty" about how to judge the legality of cross-burnings. It said that "cross-burnings are still occurring with alarming frequency," and it suggested that the court should hear the new case and provide more guidance.

The administration has its own appeal on cross-burnings still awaiting the justices' reaction in another case. Thus, the court's overall view of the issue may yet be clarified.

In recent weeks, the Justice Department has opened new cases against cross-burnings aimed at the only black family living in Sabine, W.Va., and at a minority couple in the town of Improve, Miss. The FBI also investigated recently a cross-burning outside the home of a black woman in suburban Sterling, Va., west of Washington.

There is no federal law that directly makes cross-burning a crime, but the Justice Department uses two civil rights laws and an anti-arson law as the basis for prosecuting those incidents.

In the case the Supreme Court rejected yesterday, two white men sought to draw the court back to the constitutional issue by appealing their convictions for burning two crosses in 1989 in the driveway of a neighbor in a close-knit, all-white community west of Chicago -- Keeneyville, Ill. The neighbor sometimes had black friends in for a visit.

Kenneth T. Hayward and William Bradford Krause Jr. were convicted of plotting to violate their neighbor's civil rights, of using fire to commit that crime and of using force to interfere with their neighbor's right to occupy their home. Hayward was sentenced to 12 years and nine months in prison, and Krause to six years and six months.

In their appeal, they contended that their convictions violated the court's 1992 ruling. They also argued that the anti-arson law used against them was not meant by Congress to apply to burnings that were intended to be symbolic expressions of opinions or views.

The court's refusal to take on the case came in a brief order, showing no justice voting to hear it. In other actions yesterday:

* The court agreed to try again to settle the right of state prison inmates to get into federal court to make a claim that they actually were innocent. The case involves a Sedalia, Mo., man who has been sentenced to death for the murder of a fellow inmate in the state prison.

The killing of the black inmate during a prison fight was said to be an act of racial hatred. Convicted of the murder was a white prisoner, Lloyd Eugene Schlup. His lawyer has found five eyewitnesses to the crime who are prepared to say under oath that he did not commit the crime. Schlup contends that he was eating a sandwich in the prison dining hall when the crime occurred.

He was been denied access to a federal court to make his claim of innocence because lower courts said his claim was not strong enough.

Last year, the Supreme Court indicated that it might be xTC unconstitutional to execute a person who had strong evidence of innocence. It did not say how much proof of innocence would be required. The new case raises the issue of how strong the evidence of innocence must be just to get a federal court to hear it.

* The court refused to stop the states from abolishing the so-called insanity defense: the claim that an individual should not be convicted because he or she was insane at the time of the crime.

Three states no longer permit that defense. In one of those states, Montana, the abolition was challenged by a man now serving a 60-month prison sentence for an assault on a female Forest Service employee at an isolated cabin 18 miles outside the town of Lolo. He lost his challenge in state court, and the Supreme Court declined to review that result, giving no explanation.

Idaho and Utah also have eliminated the insanity defense.

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